When is news reporting fair use under copyright law?

Blogger claims fair use supports his challenge to DMCA takedown of YouTube video. But “news reporting” aspect of fair use can be tricky.

An embattled California pastor sent a DMCA takedown notice to YouTube over a video clip that a blogger used “to report accurately the relationship” between two organizations. The blogger sent a counternotification and explained that he believes copyright fair use protects him against the takedown (and apparently against infringement as well).

The blogger invokes, among other things, the news reporting aspect of fair use, which one finds set forth in Section 107 of the Copyright Act. A recent fair use case, Swatch Group Management Services Ltd. v. Bloomberg, 742 F. 3d 17 (2d Cir. 2014) might shed some interesting light on how news reporting plays into the analysis. In that case, the court found that defendant was protected by fair use when it distributed an audio recording of a company’s earnings call. Unlike many fair use cases, in which the analysis under the first factor (purpose and character of the use) becomes a question of whether the subsequent use is “transformative,” the court observes the following:

In the context of news reporting and analogous activities … the need to convey information to the public accurately may in some instances make it desirable and consonant with copyright law for a defendant to faithfully reproduce an original work rather than transform it.

A defendant may in some circumstances provide transformative material along with the faithful reproduction of an original work. But the absence of that transformative material will not disqualify a defendant from showing fair use:

[B]y disseminating not just a written transcript or article but an actual sound recording, [defendant] was able to convey with precision not only what [plaintiff’s] executives said, but also how they said it. This latter type of information may be just as valuable … as the former, since a speaker’s demeanor, tone, and cadence can often elucidate his or her true beliefs far beyond what a stale transcript or summary can show.

So we see that the news reporting aspect of fair use can be conceptually separated from transformative use.

There is a slippery slope risk here, and the court recognized that. It cited to the Supreme Court’s Harper & Row decision to observe that “[t]he promise of copyright would be an empty one if it could be avoided merely by dubbing the infringement a fair use ‘news report'”. In this case, however, the “independent informational value inherent in a faithful recording” carried the day. From this we see a rule or guide: use of a piece of content is more likely to be newsworthy if the piece of content itself, and not just the raw information within the content, is a news event.

Evan Brown is an attorney in Chicago advising clients on matters dealing with technology, the internet and new media.

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Evan Brown is an attorney in Chicago helping businesses and individuals identify and manage issues dealing with technology development, copyright, trademarks, domain names, software licensing, service agreements and other matters involving the internet and new media.

Evan is a partner in the law firm of Much Shelist, P.C. He is an adjunct professor of law at Chicago-Kent College of Law, and is a Domain Name Panelist with the World Intellectual Property Organization (WIPO).